Consent in Contract Law
THE ETHICS OF CONSENT: THEORY AND PRACTICE, Alan Wertheimer, Franklin G. Miller, eds., Oxford University Press, 2010
30 Pages Posted: 3 Jun 2008 Last revised: 31 Oct 2011
Date Written: 2008
Abstract
Consent, in terms of voluntary choice, is - or, at least, appears to be or purports to be - at the essence of contract law. Contract law, both in principle and in practice, is about allowing parties to enter arrangements on terms they choose - each party imposing obligations on itself in return for obligations another party has placed upon itself. This freedom of contract- an ideal by which there are obligations to the extent, but only to the extent, freely chosen by the parties - is contrasted to the duties of criminal law and tort law, which bind all parties regardless of consent. At the same time, consent, in the robust sense expressed by the ideal of freedom of contract, is arguably absent in the vast majority of the contracts we enter these days, but its absence does little to affect the enforceability of those agreements. Consent to contractual terms often looks like consent to government: present, if at all, only under a fictional (as if) or attenuated rubric.
This article explores a variety of topics relating to consent, and the role it plays in contract law doctrine and theory. The article begins by a brief examination of the nature of consent, then turns to contract doctrines that turn on the alleged absence of consent (e.g., duress and undue influence); contract rules and principles (e.g., implied terms) that turn on hypothetical consent; the challenges to consent that arise from electronic contracting and bounded rationality, and theories of contract law that emphasize consent.
Keywords: contract, consent
Suggested Citation: Suggested Citation
Do you have negative results from your research you’d like to share?
Recommended Papers
-
What's in a Standard Form Contract? An Empirical Analysis of Software License Agreements
-
Competition and the Quality of Standard Form Contracts: The Case of Software License Agreements
-
On-Line Boilerplate: Would Mandatory Website Disclosure of E-Standard Terms Backfire?
-
Are 'Pay Now, Terms Later' Contracts Worse for Buyers? Evidence from Software License Agreements
-
On-Line Consumer Standard-Form Contracting Practices: A Survey and Discussion of Legal Implications
-
'Unfair' Dispute Resolution Clauses: Much Ado About Nothing?